Siman 250

The sages enacted regarding a sick person who gives a gift that it does not require a kinyan, and the words of a shekhiv mera are considered as if written and delivered. Even though the recipient only acquires it after the death of the giver, they treated it as if he wrote and delivered it to him during his lifetime, and when he dies, he shall acquire it retroactively from the time of the giving [Tur]. It was necessary for them to enact thus, for if not so, how would the recipient acquire it after death? Are not his heirs prior, as they inherit by Torah law? Therefore, they treated it as if he delivered it during his lifetime with a complete kinyan. And if the gift is land, it is as if he wrote the deed during his lifetime, even though he only acquires it after the death of the shekhiv mera [this is the intention of the Tur]. Therefore, our sages of blessed memory said [Bava Batra 149a] that the rabbis established a gift of a shekhiv mera like an inheritance; for just as with an heir, when are the properties his? After the death of his benefactor, yet nevertheless, even during the lifetime they are as his for when he dies by decree of the Torah—so too, a gift of a shekhiv mera is as his during the lifetime, even though the kinyan is after death. Therefore, it will be explained in siman 256 that in a place where he cannot bequeath, he cannot give as a gift of a shekhiv mera. And why did the sages not enact that he should truly merit it completely from the time of his speaking? So that it would be within the power of the shekhiv mera to retract if he should rise from his illness. And the rabbis strengthened the law of a gift of a shekhiv mera, making it like Torah law [ibid. 147b] regarding the matter that if he gave a promissory note as a gift of a shekhiv mera, the heir cannot forgive the debt, even though with one who sells a promissory note he can forgive the debt, as written in siman 66. And there is no difference whether he commanded to give it to him immediately after his death or commanded to give it after a period of time; we do not say he does not have the power to give after a period of time because the heirs preceded him, for since they treated it as delivered during his lifetime to the recipient, the inheritance does not take effect upon this. Therefore, even though regarding a gift "go [and give]" is not considered like "merit [it for him]," as written in siman 243, yet in a gift of a shekhiv mera "go" is like "merit." And even if the recipient died before the giver, the heirs of the recipient merit it, for from the moment he delivered it to the messenger, it is as if the recipient merited it, as written in siman 125, because they treated it as delivered during his lifetime. Consequently, even though he only acquires it after death, nevertheless, when he removed it from his domain and delivered it to a messenger to deliver to him, the recipient truly acquires it during the lifetime [and this is the intention of the Tosafot at the end of the first chapter of Gittin, s.v. "Ha be-shekhiv mera," and the Rosh there; and the difficulty of the Ran there is answered, and all that the Ktzot HaChoshen scrutinized is settled; and delve into this].

Therefore, if the shekhiv mera himself did not command to give anything, but rather appointed apotroposim and gave them permission to distribute his assets as they wish, and their actions shall be as his actions, some say that his words are of no effect. For immediately upon his death, the assets fell before the heirs and his gifts were nullified. One cannot say regarding this that his words are as if written and delivered, for even if he were to write that others shall give his assets, there is no substance to this. And some say that his words stand, for the action of an apotropos is like his testament and his words stand. For since according to the essential law there is no kinyan through words, but rather regarding a shekhiv mera they enacted that his words shall be fulfilled, what does it matter to me if he himself said to give to so-and-so or if he commanded others to give? For behold, his will must be fulfilled. And the first opinion holds that since the primary enactment was so that his mind should not be distressed, as will be explained, this applies only when he gave himself. But when he did not give himself, he is not so concerned, and had he wanted his words to be fulfilled, he would have said himself to whom to give [see Levush and Sma]. And even if he commanded a beit din to give to whomever they wish, it is not effective, and we do not say regarding this "the power of the beit din is great" [Mordekhai, end of chapter 8 of Bava Batra]. And even though an apotropos has the power to separate terumot and ma'asrot, this is so that the orphans shall not eat forbidden food [the Rambam, end of Hilkhot Nakhalot].

And why did the sages ordain thus? Because the mind of a sick person is weak, and not all times are suitable for the sick person to perform kinyanim, and our sages, of blessed memory, feared that if it were known to the sick person that his words are not binding, he would be distressed by this and his mind would be unsettled, and he would come to danger. Therefore, they ordained that whatever he desires to do with his property shall be upheld through mere speech; and why should we not fulfill his will with his own property?

And what is called a shechiv mera? For it is not reasonable to say that one who is slightly concerned for his health should have the status of a shechiv mera. The Rambam, of blessed memory, wrote in chapter 8 of Zekhiya that a blind person, or a lame person, or one whose hand is amputated, or one who has a pain in his head or in his eye or in his hand or in his foot and the like, where the illness has not spread through the whole body, behold he is like a healthy person in all his matters, in his buying and selling and his gifts. But a sick person whose strength of the whole body has weakened and his strength has failed due to the illness until he is unable to walk on his feet in the marketplace and behold he is fallen upon his bed, he is the one called a shechiv mera, even though he did not say that he is commanding due to the illness. And regarding a shechiv mera himself there are distinctions of laws between a shechiv mera and one commanding due to death. How so? A shechiv mera who gave his property and did not mention that he is giving due to the worry of death, his words are not established without a kinyan unless he gave all of his property, for then we say that presumably he is giving due to the worry of death, and the sages were concerned that his mind might become unsettled and did not require a kinyan; and if he recovered from his illness, he may retract. But if he gave a portion of the property, his status is like a healthy person and he requires a kinyan, and if he recovered from his illness, he may not retract, for since he left over for himself, it appears that he did not give due to the worry of death. But regarding one commanding due to death, who mentioned at the time of the gift that he is giving it due to the worry of his death, or if he said explicitly that he is giving it as a gift of a shechiv mera so that the recipient shall not acquire it until after his death, there is no distinction between a gift of all of it or a portion of it, and it does not require a kinyan, and if he recovered, he may retract. And some say that in the first three days of his illness, if he did not explicitly mention that he is giving due to the worry of death, he requires a kinyan when he did not give all the property, for in the first three days he does not give due to the worry of death unless he mentioned it explicitly or gave all the property, which proves that he gives because of the worry of death. But after three days, or if the illness jumped upon him even within the three, his status is like one commanding due to death. This is the general overview of the matters, and they will be explained before us in detail. And there are others whose status is like a shechiv mera, who do not require a kinyan and if they leave this state they may retract their gift, such as one who became mute, and one who sets sail on the sea, and one who goes out with a caravan to the deserts, and one who goes out in a collar to be judged for death, and they will be explained in section 29.

A shechiv mera who wrote all his properties to others and did not reserve anything, if he arose and was completely healed, the gift is nullified automatically, even if he does not explicitly say that he retracts it, because presumably he retracts it in his heart. And even though there was a kinyan and we should have said that it is no less than a healthy person and he should not have the ability to retract it, nevertheless, since he distributed all his properties, we are witnesses that his intention when he accepted the kinyan was specifically if he should die, for a person does not give all his properties to others and remain with nothing. And we follow such a strong assessment even though he did not specify, and even if the gift already came into the hand of the recipient [Shach]. And even if he stipulated at the time of the gift that he should not be able to retract it, nevertheless, if he arose, he retracts, for in this the sages, of blessed memory, did not enact that his words should be as if written and delivered such that he cannot retract when he arises. Therefore, if he stipulated and they performed a kinyan from him explicitly that he should not be able to retract, he cannot retract, for this is exactly like a gift of a healthy person. And there are those who hesitate even in such a case, for since regarding a shechiv mera we follow an assessment, it is obvious that even in such a case the assessment is not removed [the Gra], for since his kinyan is not effective regarding retraction, what will the stipulation add? And a shechiv mera who arose from his illness, even though within the gift there were also forgivenesses of money which do not require a kinyan, nevertheless, if he arose, he retracts from this as well and the debtor must pay him, for forgiveness of a debt is no better than a gift with a kinyan [Sma]. And some say that even during his illness he can retract from forgivenesses of debts [Netivot HaMishpat], just as with all his gifts that he retracts even during his illness as will be explained. And when he arose from his illness, even without specification, it is like a retraction as I have written.

If he was not completely healed but rather moved from this illness to another illness, if he did not stand and did not walk leaning on his staff in the marketplace, even though in his house he walked on his staff, his gift stands when he dies, for he did not stand in the interim such that it would be voided automatically. And if he stood between the illness during which he made the command and the illness from which he died, and he walked in the marketplace leaning on his staff, we assess him according to physicians; if they say that he died because of the first illness, his gift stands, for he did not recover completely and also died from that same disease. And if they assess that he did not die from that same disease, it is not a gift, for regarding this disease for which his command was made, he recovered, and the gift was voided automatically. And if he walked in the marketplace without a staff at all, no assessment is needed even when he dies afterward, but rather his previous gifts are voided.

It has already been explained that a kinyan is not effective regarding the inability to retract; and not specifically kinyan sudar, but rather the same applies to any kinyan, such as meshikhah, mesirah, hagbahah, or hazakah in land—in all of them he can retract. Furthermore, tefisah is not effective, for tefisah is only effective in a matter where there is a doubt, but in a matnat shekhiv mera of his entire property there is no doubt at all, for he certainly can retract. And it is not specifically a retraction when he recovers from his illness, for that is a retraction for his own sake, as in that case no retraction is necessary at all because it is a retraction by default; rather, even during his illness he can retract and give to another, and certainly to withhold for himself. And thus our sages, of blessed memory, said: A shekhiv mera who wrote his property to one person and then went back and wrote it to another, the latter acquires [Bava Batra 152b], because it is in his power to retract until he dies, whether he retracted from the whole or whether he retracted from a part, for a retraction of a part is a retraction of the whole, as will be explained. And so too in a gift of a part, if he specified that it should be as a matnat shekhiv mera, its law is like a gift of the whole, as I have written. Not only this, but even if he wrote a deed of gift to Reuven and granted him the deed through another, or if he said to one person, "Go, perform hazakah and acquire on behalf of Reuven," and afterwards he wrote and granted it to Shimon—and even if he wrote to Shimon without granting through another—Shimon acquires, for a shekhiv mera who granted through another is still a matnat shekhiv mera and he can retract, and tefisah is not effective. However, if he wrote and granted and they performed a kinyan from him, he cannot retract, neither to another nor for himself, even if he gave all his property; for since he strengthened it so much, he certainly intended it as a complete gift like the gift of a healthy person. And so too if he wrote and the gift reached the hand of the recipient himself, whom he commanded to receive it, the Tur wrote that it is effective and he cannot retract. And even according to the opinion at the end of siman 125 that even when it comes into the hand of the recipient it is only effective so that he cannot give it to another, but for himself when he recovers he retracts, nevertheless, since he also wrote it to him, he cannot retract even for himself [Taz]. And that which we said, that meshikhah and mesirah do not acquire and he can retract even to another, this is when the mesirah into his hand was not by way of kinyan, but rather that he delivered it into his hand so that he should take it to his house, or said to him, "Pull it so that it shall be in your house," and not meshikhah by way of kinyan; and so too the reverse, when the meshikhah and mesirah were only by way of kinyan alone. But if it was by way of kinyan and he also commanded him to take it to his house, certainly he cannot retract to another, but only for himself when he recovers from his illness [as is evident from Sma, subsection 15].

All this applies to an ordinary shekhiv mera gift of all his property, but in the case of a command due to death, it is explicit that even if he wrote and granted it and they performed a kinyan from him, he can retract, and even if he delivered it into his hand. It appears to me that we are witnesses that even though he performed all the reinforcements, nevertheless his intention was only for when he dies, for behold, he said explicitly that he is giving due to death; rather, his intent is that when he recovers he will retract. This is in contrast to an ordinary shekhiv mera gift of all his property, where even though we hang the matter on his giving due to death, nevertheless, since he did not speak explicitly of it being due to death and he performed many reinforcements, we hang the matter on the premise that he is not giving due to the worry of death. And there is one who says that even in a command due to death, this is specifically when he explained explicitly that he is giving due to death, but an ordinary command due to death, such as if he said, "Woe that this man is dying," and similar such expressions, its law is like a shekhiv mera when he performed the reinforcements and he cannot retract. And likewise, even in an explicit command due to death, if he explained explicitly that he is giving it as a gift of a healthy person from now and they performed a kinyan from him, he cannot retract.

And all these matters were only stated regarding one who gives all his properties and did not reserve anything, but if he reserved anything that he did not give, the law of a matnat shekhiv mera does not apply to this at all, and it is like the gift of a healthy person which is only acquired through a kinyan, and without a kinyan he does not acquire it even when he dies. Therefore, if he recovered, he cannot retract it, and all the more so he cannot give it to others. In what case does this apply? When he gave without specification, but if he specified that he is giving on account of death, or even if he did not specify explicitly but it appears from his words that he is giving on account of death, such as if he is complaining about his death and the like, or if he gave it explicitly as a matnat shekhiv mera, whose law is like one who commands on account of death, it does not require a kinyan, and if he recovered he may retract, and likewise he may give it to others, and even if they performed a kinyan from him, it is according to the law of a gift of the whole. And how much is the reservation? Even any amount, whether land or movable property. And some say that we require a reservation sufficient for his livelihood, such as if he is a tiller of the soil, he must reserve for himself land sufficient for his livelihood and the livelihood of the members of his household, and if he is a merchant or a lender on interest, he must reserve for himself enough so that he and the members of his household can be supported by it, for in this there is a sign that he did not give on account of the worry of death; but with a reservation of less than this, it is like a gift of the whole.

It has already been explained that a gift of a shekhiv mera regarding all his property, or one who commands due to death even regarding a portion, and likewise when he gave explicitly as a gift of a shekhiv mera, the giver may retract it, whether for himself or for others. This is so even if he wrote a deed for him or if he performed a kinyan with a kinyan sudar. On the contrary, the Sages, of blessed memory, said that in all these cases where a deed and kinyan are not required, when he writes a deed or performs a kinyan with a kinyan sudar, they diminish the strength of the gift, unless he is "strengthening his power." The explanation of these matters is that it is clear to us that in all these cases, the intention of the giver was that the recipient should acquire it after his death, and the Sages treated them as if they were written and delivered during his lifetime, as has been explained. Therefore, regarding this giver who added the performance of a kinyan or a deed—certainly, if he had specified that he is giving "from now" and transferring it to him during his lifetime, it would be like all other gifts of a healthy person, where once the deed reached the hand of the recipient or when they performed a kinyan from the hand of the giver, he cannot retract it. However, if he gave it without specification like other gifts of a shekhiv mera and added a kinyan to this, he has not acquired it even when he dies. Even if it was written in a deed for evidence and he delivered the deed to him during his lifetime, he has not acquired it, for perhaps he did not resolve to transfer it to him except through the kinyan, and there is no kinyan after death. Likewise, if he wrote him a deed of kinyan even without a kinyan sudar, he has not acquired it; or if the shekhiv mera commanded that they write a deed of gift for the recipient and he died, they do not write and give it, for perhaps he did not resolve to transfer it to him except through the deed, and there is no deed after death. Therefore, one requires a "strengthening of power" for the kinyan or the deed to reveal that the giving was not because of the kinyan or the deed, but rather because of his verbal command, and the kinyan or the deed is only for a "strengthening of power," as will be explained. Accordingly, one must know that in every place where we mentioned kinyan and a deed regarding a gift of a shekhiv mera in a place where it is not required, its meaning is with a "strengthening of power," for if not so, he has not acquired it at all even when he dies.

How is the strengthening of power [yippui koach] expressed? For example, if he wrote in the deed of the will, "And we performed a kinyan from him in addition to this gift," for in this it appears explicitly that the gift is without a kinyan and the kinyan is only for a mere addition. And similarly, if he said orally, "I will accept a kinyan to strengthen the matter." And similarly, if there is any other thing that proves that the gift was not based on the kinyan alone. And similarly, if he wrote that this deed shall be effective in any manner that is beneficial, it is as if he wrote a strengthening of power, and he acquires it through the strengthening of power of the deed. For example, if he said, "Give to so-and-so such and such, and also write a deed for him," for it appears explicitly that the deed is only for mere preference. But without a strengthening of power, even when the deed was written during his lifetime, they do not give it to him after death, as I have written. And similarly, some say that if the giver performed the kinyan and the deed at the request of the recipient, who requested of him to make a deed for him or to accept a kinyan sudar, it is like a strengthening of power, for he only did so to fulfill the will of the recipient. And similarly, even when the giver acted on his own, and after the kinyan or the deed he said with his mouth that the gift should be established, it is like a strengthening of power, for behold, he transferred ownership with his mouth according to the law of a gift of a shekhiv mera, and he revealed his intention that the kinyan and the deed were only for a strengthening of power. And there is no difference in all this between a Torah scholar and an ignoramus. And we do not say that since the giver is an ignoramus, therefore he commanded to make a deed or the kinyan and not because his intention was not to transfer ownership in another manner—for on the contrary, since he believes that a kinyan or a deed is necessary, behold, he does not transfer ownership without this; and what does it matter to me if it is not his will to transfer ownership without this or if he believes that it is impossible to transfer ownership without this? Ultimately, he does not transfer ownership without them, and there is no kinyan or deed after death. And some say that if we saw a revelation of intention from the giver that he believes a kinyan is necessary, it does not diminish the power of the gift [Taz], for had he known that a kinyan is not necessary, he would have given it without a kinyan, and automatically it is like a strengthening of power.

That which we say that a shtar weakens the power of the gift, such that even if the shtar reached the hand of the recipient during [the giver's] lifetime he does not acquire it unless he strengthened his power, this is specifically when the shtar is not written in the language of a will but in the language of a gift, that he transfers it to him with this shtar, such as when it is written in it "my field is given to you," for this is an acquisition of a shtar in a gift of a healthy person, for then we say perhaps he did not intend to transfer it to him except through the acquisition of the shtar, and there is no shtar after death, for the delivery of the shtar is like an acquisition and requires strengthening of power. However, if the shtar is written in the language of a will in the manner that one commands his household, such as when he commands and orders to give such-and-such field to so-and-so, for such a shtar is only for evidence and not for acquisition, the law is that it does not require strengthening of power. However, if in this will no other matter was written except this gift, if the shtar reached the hand of the recipient during [the giver's] lifetime he acquires it, but when it did not reach his hand during [the giver's] lifetime he does not acquire it; and even though this is not a shtar of acquisition, nevertheless, since nothing was written in this will except this gift, we say that perhaps his intention was specifically to deliver this shtar to him during his lifetime. And similarly, if he wrote in his handwriting "my field is given to so-and-so," even though he did not write in the language of a will, nevertheless this is only like a will and not like a shtar of acquisition, since he did not write in the second person "my field is given to you," he acquires it without strengthening of power when the shtar comes into his hand during [the giver's] lifetime. But if in the shtar of the will another matter is written, even if it did not reach the hand of the recipient during [the giver's] lifetime he acquires it, for certainly his intention was not to deliver the shtar to him since another matter is written in it. And similarly, if he said to the recipient before the writing of the shtar "I am giving you such-and-such field as a gift of a shekhiv mera," or if he said to others "give so-and-so such-and-such field," the delivery of the shtar of the will into the hand of the recipient is not a hindrance even if no other matter is written in it, for certainly his intention was not to deliver this shtar to him during his lifetime since he gave it to him before the writing of the shtar; and this will be further explained in section 16.

And similarly, regarding that which has been explained, that if a shekhiv mera commanded that they write a deed of gift for the recipient and died, they do not write and give it, for we fear perhaps he did not finalize the transfer of ownership except through the deed—this is also specifically in such a case. However, a shekhiv mera who is arranging his affairs and finalizing his will and commands to write it, it is only for a mere record, and he finalized the transfer of ownership to him immediately and does not require the strengthening of his power. If there is nothing in this deed except for this gift, the deed must reach the hand of the recipient during [the giver's] lifetime; but if there is another matter in it, it does not need to reach his hand during his lifetime [and with this, that which our teacher, the Rema, wrote in section 21, "and it has already been explained etc.," which the later authorities wondered about, is settled; and examine this carefully].

And know that this which we have said, that a deed of testament is not like a deed of acquisition, this is when there was no kinyan sudar, and likewise when "acquisition of the deed" is not written within the testament; but if there was a kinyan sudar or if "acquisition of the deed" is written in the testament—that he transfers it to him with this deed—its law is like any other deed of gift and it requires "strengthening of the power." Nevertheless, in a testament in which "acquisition" is written, in a place where it is the custom that everyone transfers with a mere testament and they do not intend to transfer via the deed, it does not require "strengthening of the power," for this itself is like "strengthening of the power," as they are accustomed to strengthen the power of the recipient and to write the testament with an acquisition. And likewise, one who requests of his heirs that they should do such-and-such with his property after his death—to give to so-and-so such-and-such a field, and to so-and-so such-and-such an object, and the like—it is called a testament of a shekhiv mera, and the recipients acquire it. And we do not say that since he did not do it himself, its law is as I wrote in section 2, for it is not similar to there, where he did not specify at all what to do; but in this case, behold, he specified to do such-and-such, and it is like a gift from him. And that which he requested of them to do such-and-such, he only did to strengthen the matters so that they should not change anything from all that he commanded. But if he told them to do with his property in general as they wish, its law is as in section 2. [So it appears to me to explain the words of the Tur and the Shulchan Arukh from section 17 until section 22].

There is one who says that regarding what has been explained—that when one commands to write a document, a power of attorney is required and without this he has not acquired—there is no difference between whether he says "write and give" or whether he says "give and write." And there is one who says that a power of attorney is not required except when he says "write and give a maneh or a field to so-and-so," for the implication of its meaning is: write a maneh or the field to so-and-so and give him the document. However, when he says "give a maneh or a field to so-and-so and write him the document," since he does not mention that they should give him the document, he did not intend with the writing of the document anything but a memorandum of matters, and not that he should acquire for him through the document; and we do not require that the document reach his hand during [the giver's] lifetime. And so too, when he says "write for so-and-so and give him the maneh or the field," since he did not mention the giving regarding the document but only regarding the gift, the giving of the document is not a hindrance. [It appears to me] that we are not particular that the document reach the hand of the recipient during [the giver's] lifetime except when it can be attributed that the intention of the shekhiv mera was specifically to give the document into the hand of the recipient.

And so too, a shekhiv mera who said, "Give a maneh to so-and-so" or "Give this field to so-and-so," and after tokh kedei dibbur said, "Write and give him the shtar," even if he was particular about the giving of the shtar, nevertheless we say that presumably his intention was not to retract from what he granted him with his previous speech, and the writing is to strengthen his hand so that he should have it as proof. However, the witnesses must be careful to write thus: that he commanded to give the maneh or the field to so-and-so, and that afterwards he commanded to write and give him the shtar. For if they write that he said to us, "Write a maneh for so-and-so and give it to him," and the beit din that sees this language will judge that he said it all at once or within tokh kedei dibbur, they will void the gift for the reason that has been explained—lest he only intended to grant it to him via the shtar, and there is no shtar after death. And even if they write the shtar in the manner of a tzava'ah, there could also be a ruinous outcome, such as if they do not deliver the shtar into the hand of the recipient during his lifetime and the beit din voids the tzava'ah, as I wrote in section 12. And so too, a shekhiv mera who said to someone, "Behold I am giving to you as a matnat shekhiv mera" or "I command by reason of death to give you a maneh or such-and-such field," and after tokh kedei dibbur he performed a kinyan or wrote a shtar or commanded to write a shtar, it is considered a strengthening of his hand and he has acquired it. We do not say that through the kinyan or the shtar he voided the gift of mere words; rather, his intention was to strengthen his hand, as I wrote in section 12. The general rule of the matter: whenever it is evident that the intention of the shekhiv mera was to grant it through words alone, we hang it on the fact that his kinyan or the writing of the shtar was only to strengthen his hand. Therefore, regarding "give and write," even according to the first opinion in the previous section, if according to the arrangement of the matters it is evident that his intention was only for the giving of the gift and not for the giving of the shtar, even according to this opinion he has acquired it and does not require a strengthening of his hand. And this requirement that he must say it specifically after tokh kedei dibbur applies when he explicitly said to give him the shtar; but when it is evident from the language that the giving does not refer to the shtar, he has acquired it even when he said them in one speech.

There is one who says that even though it has been explained that with writing and kinyan it is not effective, nevertheless, if he wrote to one and granted kinyan to him and then went back and wrote to a second and granted kinyan to him, the second acquires even without yipui koach. For we say that the kinyan and writing of the second serves as yipui koach, because he was of the opinion that the second would not acquire if his power was less than the first, therefore he did so; and the second acquires even when the shetar did not reach his hand during [the donor's] lifetime. And similarly, if he wrote and delivered and granted merit to this one, and went back and wrote and delivered and granted merit to the second, the second acquires even without yipui koach for the reason that has been explained. For this opinion holds that as much as we are able to uphold the gift and provide a reason for the kinyan and the shetar so that they do not nullify the gift, we uphold the gift. However, many disagree with this, for one should not extract money based on such a slight reasoning. And even according to the first opinion, this is specifically when he did not provide yipui koach to the first; but if he provided yipui koach to the first and not to the second, this reason is not applicable, for behold, he diminished his power [Sma]. And both of them do not acquire: the first because he retracted, and the second because he did not provide him yipui koach, and since the shetar did not reach his hand during [the donor's] lifetime, he did not acquire.

An incident occurred regarding a shechiv mera who gave his lands to someone as a matnat shechiv mera and said that he also gives him all the movables agav the lands, and the Rashba, of blessed memory, ruled that he did not acquire the movables. For if it were his intention to transfer the movables to him as well via matnat shechiv mera, he should not have transferred them agav the land, and he should have said, "I give my lands and my movables to so-and-so," and he would have acquired them after the death of the giver. Rather, he certainly revealed his intention that he does not wish to transfer them via matnat shechiv mera, but rather through the kinyan of agav. And from either perspective: if it were his intention that he acquire them after death through the kinyan of agav, there is no kinyan after death; and if it were his intention that he acquire them during his lifetime agav the land, behold the land is not yet his such that he could acquire the movables through a kinyan of agav land that is not yet his. And it appears to me that according to this, if it were a general matnat shechiv mera of everything, since part of it is void, it is all void, as will be explained. And all this is when he transferred them only through the kinyan of agav, but if he said, "My movables I give to him, and for the purpose of strengthening the power of the gift I give them to him agav the land," he has acquired everything; for even though the kinyan of agav is nothing, nevertheless, since this is only to strengthen the power of the gift, we are not concerned by it. And similarly, if they performed a kinyan from him that he transfers his lands from now, even though he specified that the gift shall not take effect until after death, his words stand and there is no need for strengthening the power of the gift; for since he transferred them from today, it is like a matnat bari that takes effect immediately, and he can also transfer movables agav them. And that which he said, that it shall not take effect until after death, his intention was that it should be within his power to retract it, but if he did not retract it, the matter is revealed that the gift belonged to the recipient from the first moment of the giving [as is the intention of the Rema at the end of siman 17].

The general rule that emerges from all that has been explained is that a gift of a shechiv mera regarding all his property does not require a kinyan, and if he recovered, he may retract; and regarding a partial gift, it requires a kinyan, and if he recovered, he may not retract. In what case does this apply? In an unspecified case. But if he gave a portion of his property explicitly as a gift of a shechiv mera, it does not require a kinyan, and if he recovered, he may retract, and if he did not recover, the recipient acquires this portion. And so too regarding a command due to death. And if there was a kinyan performed for them, the recipient does not acquire it unless he wrote "as one who strengthens his hand," for if not so, perhaps he did not intend to transfer ownership to him except through the kinyan, and there is no kinyan after death. And so too regarding a deed without a kinyan. And if he wrote all his property and specified that he gives from now and transfers ownership to him during his lifetime, it is like any other gift of a healthy person, such that if the deed reached the hand of the recipient during the lifetime of the giver, or if they performed a kinyan from the hand of the giver, he acquires everything and cannot retract. And some say that the same applies to a gift of a shechiv mera in which it is found written that he transfers ownership to him from today, even if we did not hear this from his mouth, but rather it was found written so in the will, it is like a gift of a healthy person and requires a kinyan, either a kinyan sudar or a kinyan of a deed or another kinyan. Therefore, one must be careful with the wills of a shechiv mera not to write in them that he gave as a gift of a healthy person or "from today" if he did not so command; and if he did so command, it is forbidden to change it, and it is acquired only through a kinyan. And if it was not written in the deed that there was a kinyan, the gift is void, and we do not say that presumably there was a kinyan and it was the scribe who forgot to write it in the deed—as we say that "guaranty is a scribal error"—for we have not found this regarding a kinyan. And so too we do not attribute a scribal error to that which is written in it "a gift of a healthy person," for we do not say "scribal error" regarding what was written to say that it was written in error alone, for the reasoning of "scribal error" is only regarding guaranty, because a person does not cast away his money for nothing, as I wrote in siman 39.

A shekhiv mera who gave his property and did not say "all my property," where according to the language it is possible to say that they are a portion of the property, but the matter appears as if they are all his property—nevertheless, it has the law of a gift of a portion, which is not acquired without a kinyan because the heirs can say perhaps he has more property in another place. And if they performed a kinyan from him and he recovered, he cannot retract for this reason; even though it is a doubt, nevertheless, since he did not say "all my property," it implies more that they are a portion [Taz], unless it is established that he has no property except these, and then its law is like a gift of the whole. And if he said "all my property, these: such-and-such field and such-and-such field, etc.," even though it is possible to say "all my property, these that are here" and he has more property in another place, nevertheless, since he said "all my property," its law is like a gift of the whole even if we do not have an established presumption that he has no more property in another place [Sma]. And some say that even without the language of "all" and without a presumption, since it is not known to us that he has more property, even without a kinyan the heirs do not have the power to seize it from the hand of the recipients, and the hand of the recipient is always on the top—both without a kinyan and he died, where the heirs do not seize it from him, and similarly with a kinyan and he recovered, where he cannot retract. And we hang it on the possibility that he has more property and we uphold the gift from every side that we can [the Maggid Mishneh, chapter 8 of Zekhiyah], for there is no power to nullify a certain benefit except with a clear matter.

There is no difference in a gift of a shekhiv mera regarding the whole of his property whether he gave to one or to one hundred as one. Therefore, a shekhiv mera who divided all his property among many people, if he did not pause between one and the other but rather said "this portion to so-and-so and this portion to so-and-so," etc., and he died, they all acquire even without a kinyan, and all the more so with a kinyan for the strengthening of the claim. And if he recovered, he retracts all of them even with a kinyan, for they are all one gift without a reservation. But if he paused significantly between one and the other and it is evident that at first he did not want to give all his property but only a portion of it, and afterwards he reconsidered to give all of it, all the gifts except for the last one have the law of a gift of a portion, which requires a kinyan even when he dies; therefore, if he recovered, he does not retract. And the last one has the law of a gift of a shekhiv mera regarding the whole, and he acquires if he dies even without a kinyan, and if he recovered, he retracts. And so too if it is evident that from the third or from the fourth he resolved to divide all his property, from them onwards they have the law of a gift regarding the whole. And if there is a doubt whether he was as one who divides or as one who reconsidered, we establish the property in the possession of the giver and the heirs, as will be explained regarding hekdesh. And it is not similar to what was written in the previous section, for there the language proves it, as was written there [it appears to me].

A shekhiv mera who gave all his properties and retracted a portion of them, presumably he has retracted all of them even if he did not specify, and if he dies, the properties go to the heirs. And even if he gave them to two people and in a document, and retracted from one of them, the second is also voided; and we do not say the matter of the document is powerful and when he did not explicitly void the second, his gift stands, for since they are in one document, presumably the entire document is voided. But if they are in two documents and he voided one, he has not voided the second unless he specified [Sma]. However, if he specified that he is only retracting a portion of it, the remaining second party acquires in any case. And even though according to his retraction the gift to the second party becomes a gift of a portion, and how shall he acquire when he dies without a kinyan? Nevertheless, since at the time he gave it, it was a gift of the whole which does not require a kinyan, it was not voided now by his retraction of a portion. And there are those who say that this is specifically if he gave that portion which he retracted to another, for ultimately it is a gift of the whole; but if he retracted it for himself, the remainder in the hand of this one from whom he did not retract is also voided until they perform a kinyan from him, for since it is within the power of the shekhiv mera to retract, and after he retracted, it is like a disclosure of intent regarding the second as well that it has left the status of a gift of a shekhiv mera, according to the law of a gift of a portion which requires a kinyan like the gift of a healthy person. And if he wrote his properties, a portion of them to others and a portion of them to heirs, and retracted the portion of the heirs, the gift of the others was not voided according to the law of retraction of a portion being a retraction of the whole, for that of the heirs is nothing more than a mere inheritance. Nevertheless, regarding the matter of a gift of the whole that does not require a kinyan, their gift is also considered as such because he divided them together; however, their retraction is not a retraction for the others. But if he retracted the portion of the heirs and did not give them to others, the others require a kinyan according to the "there are those who say," for they remained in any case as a gift of a portion [ibid.].

Since it has been explained that a retraction of a part is considered a retraction of the whole, therefore, if he gave all his property to Reuven and then retracted and gave a part of it to Shimon, Reuven does not acquire it even when he dies; for behold, he retracted the part that he gave to Shimon, and it is a retraction of the whole. Shimon has the law of a gift of a part, for behold, he [the donor] reserved for himself the remainder that he did not give to him, and from Reuven it was a retraction. Therefore, if there was a kinyan, Shimon acquires even if he did not die, and if there was no kinyan, he does not acquire even when he dies. And if he gave a part of it to Reuven with a kinyan and the remainder to Shimon, Reuven acquires even when he does not die, according to the law of a gift of a part, and for Shimon it is like a gift of the whole; and if he dies, he acquires even without a kinyan, and all the more so with a kinyan for the strengthening of his rights. And if he does not die, he does not acquire even if it was with a kinyan. The giving to the first is considered like a gift of a part even when he did not pause between his gift and the gift to Shimon, for since he received it with a kinyan, we say that his intention was to give that part with a kinyan like a gift of a healthy person [Taz]. And some say that this is specifically when he paused between one and the other, but when he did not pause, its law is like a gift of the whole even for the first [Bach], and so it appears to be the primary view [Netivot HaMishpat].

This which has been explained, that a kinyan without an empowerment of legal force weakens the power of a matnat shekhiv mera in its entirety, this is only regarding gifts. However, a shekhiv mera who commanded that so-and-so and so-and-so shall be executors over his property, and they performed a kinyan from him, his words stand and there is no need for an empowerment of legal force in this. For he is not transferring any object such that we would say he did not intend to transfer except through a kinyan, and there is no kinyan after death; for in this, the kinyan is merely superfluous. And so too regarding a deed, the law is the same:

An incident occurred regarding Reuven and his wife who stipulated between them that if he should die in her lifetime, his brothers would take two-thirds of his property and she would take the third, and the document reached the hands of the brothers and they performed a kinyan from him [Tur]. Reuven fell ill and commanded to give from their two-thirds of the property to others as well, and he died. The brothers came to void the will, saying that they had already acquired merit through the kinyan and the document. The Rosh, of blessed memory, ruled that there is nothing in their words and his will stands. Only regarding the wife does the stipulation avail, as she removed herself with her third from the obligation of her ketubah [Taz]. However, regarding the heirs, it is only established after death and he may retract. Even though he gave while he was healthy with a kinyan and a document, nevertheless, since he wrote this language "that if he should die in her lifetime etc." it is as if he said "from today if I do not retract until after death," which is like a matnat shekhiv mera. Nevertheless, it requires a kinyan as written in siman 257 [this is the intention of the Gra, subsection 35].

Even though a shechiv mera who wrote all his property may retract if he recovered, nevertheless, if he wrote all his property to his slave and recovered, he retracts regarding the property but does not retract regarding the slave, because a rumor has gone out about him that he is a freeman. Since the master knows that through his gift the rumor will go out, he presumably resolved in his mind to release him as a freeman from now. But if he wrote to him explicitly "from today if I die," he can retract, for we see that he did not resolve in his mind to release him to freedom from now [Ran, first chapter of Gittin]. And it is a simple matter that also regarding the freedom of the slave, we say the words of a shechiv mera are as if they were written and delivered, just as in all matters, and it does not require a kinyan or a shetar when it is a gift of everything. And when he dies, he requires a get shichrur from the heirs, as the Tur wrote in Yoreh Deah siman 267; and see what I wrote in siman 256 [see Responsa Perach Mateh Aaron, siman 70].

A shekhiv mera who gives his gifts must be of sound mind. Nevertheless, a will of a shekhiv mera in which it is not written that he was of sound mind is not invalidated, for certainly the witnesses saw that he was of clear mind, for if not so, they would not have written the will; as there is a presumption regarding witnesses that they do not sign a document unless it was done properly. And that which they are accustomed to write in the wills of a shekhiv mera, that he was of sound mind, is only for the enhancement of the document.

Also a goses may give a gift if he is of sound mind, for a goses is considered like a living person in all regards, and his gift, his get, and all other matters he may perform, and his actions are sustained as with all other ill people. This specifically refers to a goses who is able to speak, but if he is unable to speak, his gift is not valid [Tosafot Kiddushin 78b], even if he gestures with all types of gestures [it appears to me]. A person who became mute and is unable to speak and gestured to give a gift, we examine him in the manner that we examine for a get, as was explained in Even HaEzer siman 121; and if he responded "no" to a negative and "yes" to an affirmative, his gift is a gift, for it is evident that he is of sound mind, and if not, his gift is not a gift. And why do we not examine the goses? Because it is difficult to ascertain his examination and we do not rely on his gesturing. However, if he wrote in writing, it is obvious that it is effective, but it is remote that it would be within his ability to write [it appears to me]. And even though it was explained ibid. regarding one who is slaughtered, or mangled, or crucified, that they write a get for his wife via his gesturing, and you have no greater goses than this—a sudden goses is different, for his mind is clear at his beginning [Gittin 70b]; but a goses resulting from illness, there is concern that his mind is not clear [as appears to be the explanation of Tosafot ibid.]. And behold, even though there are some of our teachers who hold that the actions of a goses are nothing [Rashi ibid. in Kiddushin], nevertheless, all the poskim disagree with this, and so wrote our teachers, the authors of the Shulchan Aruch.

The Rambam wrote in chapter 8 of Zechiyah: One who sets sail on the sea, one who departs with a caravan, one who is led out in chains, and a dangerously ill person—which is one upon whom sickness has jumped and his illness has become heavy upon him—each of these four is like one who commands due to death, and his words are considered as if written and delivered, and they are fulfilled if he dies. But if he was saved and recovered, even if they performed a kinyan from him for a portion, he may retract, according to the law of any who commands due to death. Thus far his words. And there are those who disagree regarding one who sets sail on the sea and one who departs with a caravan, that their law is not like one who commands due to death, and therefore in a gift of a portion, a kinyan is required; but in a gift of the whole, they admit that they are similar to a shechiv mera [as is evident from the language of the Tur]. And even according to the Rambam, this is only when he commanded close to his departure to the sea or his departure with the caravan; but if he commanded days before, their law is like a completely healthy person.

Just as the law is regarding a gift of a shekhiv mera to a commoner, so too a shekhiv mera who consecrated all his properties and left nothing, or divided them to the poor, or declared them hefker—if he recovered, everything is voided according to the law of one who gives a gift. And so too, he may retract them even during his illness and withhold them for himself or give them to others. And even though in the Shas [Bava Batra 148b] it remained in doubt whether their law is like a commoner, or perhaps since he is ill he resolved in his mind to consecrate them or divide them to the poor, nevertheless, since it is a doubt, we establish the properties in the possession of the heirs when he dies, and certainly when he does not die, they remain in his possession. And even if the treasurers or the poor seized them, we remove them from their hands. And it is not similar to what was written at the end of siman 248 regarding one who says "my properties are to so-and-so" and the recipient seized a Sefer Torah, that we do not remove it from his hand even though there is a doubt whether it is included in "properties" or not; it is different there, for the gift is certain and the doubt is whether it is included or not, and therefore the one who seizes can say that it is included in the gift. But here, where the doubt is whether the essence of the gift was established or not, we establish the properties in the possession of the original owner and in the possession of the heirs who come by his power [so it appears to me]. And there are those who disagree and hold that seizure is effective, for since "speech to the Most High is like delivery to a commoner," and so too regarding the poor, by the speech of his mouth it is like a vow, and so too hefker by his mouth is hefker, rather we come to void it by power of an assessment, and we should not void it except by a clear assessment; but without this, we deliver the properties to the hekdesh and to the poor even when they have not yet seized them [Tur], and to whoever acquired them from the hefker. And some say further that even according to the first opinion, it is only when he recovered that he can retract, but during his illness he cannot retract, and when he dies the hekdesh, the hefker, and the tzedakah are established [Netivot HaMishpat]. And this is not like the one who says that when he dies, according to everyone the properties belong to the heirs and not to tzedakah on the grounds that tzedakah is like a vow, and one who vows and dies, the heirs are not obligated to fulfill his vow as was written in siman 252; for this is only when he said "I will give a maneh to tzedakah" or commanded "give a maneh to tzedakah," where the fulfillment is still lacking. But this one who designated a specific thing for tzedakah, like this one who said "my properties are for tzedakah," the properties are already seized and the vow is fulfilled [ibid.]. And the Rambam holds according to this opinion, as will be explained in siman 255.

If he sold his properties while he was a shekhiv mera, if he sold a portion of them, his sale is valid like that of a healthy person, since he sold them through one of the modes of kinyan. And if he sold all of them and the money is still extant, if he recovered he may retract, for we are witnesses that he kept the sale proceeds in his hand and did not spend them so that he could retract if he recovered. But if he spent the money, he cannot retract, and all the more so when he died, the heirs cannot cancel the sale even if he retracted during his illness. And if the money is still extant and he retracted during his illness and died, it appears to me that the heirs may cancel the sale, for since he could retract if he recovered, he may also retract during his illness. And some say that during his illness he cannot retract, and when he dies the sale remains valid [ibid.]. And that which we said, that if he recovered he may retract, this is specifically when he retracted explicitly, but it is not like a gift which is voided automatically when he recovers [Rashba]. Therefore, if he did not retract immediately when he recovered, he can no longer retract, and it is not similar to a gift, for he sold them and received their value in money. And it appears to me that if he sold them for a very low price, its law is entirely like a gift, and in any place where he may retract a partial gift, he may also retract in this case.

If one admitted during his illness regarding his property that it belongs to so-and-so, the other acquires it in any case, and even if he recovers from his illness he cannot retract it, for what relevance does retraction have regarding an admission? Not only this, but even if it is known to us that it never belonged to that so-and-so and this is like an actual gift, nevertheless, since he expressed it in the language of admission, we say that he did so in order that it would not be in his power to retract it [Sma]. This is specifically in a manner where there is no concern that he said this "so as not to appear wealthy" according to the details of the laws explained in siman 81; but where this concern exists, regardless, there is nothing in his words. However, we do not concern ourselves with "jesting," for a person does not jest at the time of death, as is written there. The witnesses must discern if it is the language of a gift or the language of admission; for example, if he said, "I desire that these movables shall be to Shimon," this is the language of a gift, but if he said, "these movables are to Shimon" or "Shimon has in my possession," it is the language of admission. And similarly, one must be precise according to the spoken language there.

An incident occurred regarding Yaakov, who gave to Reuven his son a certain field as a gift of a healthy person from today and after death, such that the body of the property is from today and the fruit is after death. After several years, Yaakov made a will due to death and divided all his assets among his sons, and that field which he had already given to Reuven, he now gave to Shimon his son. According to the law, he does not have the power to take it from Reuven since it was a gift of a healthy person. However, at the end of his will, he commanded to write that any of his heirs who refuses or challenges anything from all that he has commanded now shall not take anything from his assets, and his portion of the inheritance shall go to his other brothers. The Rashba, of blessed memory, responded that both of them cannot descend to the field: Reuven does not have the power because of the condition, and Shimon does not have the power because it belongs to Reuven. Therefore, all the days of Reuven's life, they shall not enter this field, and after his death, his heirs shall take it, for it is theirs; only their father was unable to descend to it because of the condition [Beit Yosef]. Nevertheless, if Shimon made use of it, they cannot claim payment from him, for since Reuven was unable to descend into it, it is like a property not standing for rent. Also, he cannot protest against Shimon even at the outset so that he does not violate the will, but against an outsider he may protest [Netivot HaMishpat].

An incident occurred involving a woman who was ill and divided her property as a matnat shekhiv mera, and she said before witnesses: "All my property is for so-and-so and so-and-so, except for what I have given to tzedakah," and she died. Afterward, they saw some of her property in the possession of Reuven, and she had not mentioned that which was in Reuven's possession. The recipients of the gift sued for that which was in Reuven's possession, and Reuven replied that she had given him those assets before she gave to them, and she gave it to him as a matnat shekhiv mera. Our teacher, the Maharam of Rothenburg, of blessed memory, ruled that if it were a command due to death regarding the gift to Reuven, it would certainly be a retraction when she divided all the property afterward, and they would take them from Reuven. However, when it was not clarified that it was a command due to death, and he had already performed a meshikhah on the assets according to her command, or if those assets were previously with him and she said, "Acquire what is in your possession," Reuven acquired them according to the law of a partial matnat shekhiv mera with a kinyan [Teshuvot Maimoniyot, Kinyan, siman 12], and they can impose a kabbalah upon Reuven that such is the case [it appears to me].

A healthy person who said, "Write and give a maneh to so-and-so," and died—they do not write and give after death, for there is no document after death, and also regarding movable property a document is not effective. And even in a case where he strengthens his power by saying "give even write," it is not effective, for the speech of a healthy person is nothing. And some say that since it is a mitzvah to fulfill the words of the deceased, it applies also to a healthy person when he commanded and died, as is written in siman 252. Therefore, if he said "give" and did not say "write," they give because of the mitzvah to fulfill the words of the deceased; but regarding "write and give," there is no document after death. And even if he strengthened his power by saying "give even write," nevertheless, since he mentioned writing, they do not write and give [as above from the Tur, section 38]. And according to the opinion that will be explained there, that we do not say "it is a mitzvah to fulfill the words of the deceased" except where he deposited it in the hand of a third party, it is not effective even with "give" alone unless he deposited them beforehand. However, if he did not die, they do not give in any case, for regarding a healthy person, without some form of kinyan, it is nothing [ibid.]. And this is only regarding money, but a healthy person who said, "Write and give this field to so-and-so," if he is alive, since a document is a kinyan for land, they write and give if he did not retract before the document reached the hand of the recipient. But when he dies, they do not write and give, for there is no document after death, unless they performed a kinyan from his hand, for then he acquired from the time of the kinyan and the document is only for mere evidence, and they write even after death. But coins and movable property are not acquired by a document, and only meshikhah, hagbahah, and agav land are effective, and for movable property kinyan sudar is also effective. Therefore, if he granted him merit through another person with an effective kinyan, he acquires them whether the giver died or did not die; and if he commanded also to write, they write even after death, for this is only for mere evidence [as above from the Tur].

A case occurred involving Reuven who sued Shimon, saying that his mother deposited a deposit in his hand, and when she delivered it to his hand, she told him that he should give it after her death to Reuven her son. Shimon replied: She spoke to me in this language: "If I need it for myself, return it to me, and if not, give it after my life to Reuven my son." Our teacher, the Maharam of Rothenburg, ruled that it belongs to all the heirs; for since she was healthy, she cannot give through mere words, and we do not say "give is like acquiring" regarding a gift. Furthermore, she said to give it to him after death, and there is no gift after death for a healthy person. Furthermore, she said "if I need it, give it to me," and she did not decide it absolutely for Reuven. Also, "it is a mitzvah to fulfill the words of the deceased" is not applicable here, since she did not deposit it specifically for Reuven her son, for the primary deposit was for her own needs should she need it. And if Reuven claims with certainty that she deposited it only for his sake, Shimon must swear that the deposit was as he said. [Mordechai, chapter 8 of Bava Batra].

An incident occurred regarding Rachel who was ill and distributed all her property in a deathbed will to the heirs, and Leah her relative was with her and she handed her the keys, and Leah would go in and out of her rooms, and after her death it became known that Leah had seized money and movable property, and the heirs summoned her to a beit din. She said that Rachel had already given them to her as a gift and she had acquired them through meshikhah. The Maharam of Rothenburg ruled: if these movable objects are known to belong to Rachel and witnesses now see the movable objects in the hand of Leah, such that she does not have a migo of "I returned them," she must return them to the heirs as she is not believed. But if not, Leah shall swear that it is as she says and she may keep them. Therefore, regarding money which has no identifying mark, she shall swear a shevuat hesset that Rachel gave them to her as a gift [ibid. chapter 9].

There was an incident involving a shekhiv mera who said, "Give eight zequqim to so-and-so" as a mitzvah mahmat mitah, and after an hour he said, "Give eight zequqim to so-and-so" as a mitzvah mahmat mitah. The recipient wanted them to give him sixteen zequqim, but they ruled that he has only eight, for the whole matter is one gift, since he did not say, "Give another eight zequqim," and that which he repeated his words was only to strengthen the matter [ibid. in the glosses].

An incident occurred involving a certain widow who commanded at the time of her death to give such and such from her property to a certain relative of hers, and her son, the heir, was present with her and remained silent. After her death, he did not want to give, saying that his mother had not sworn regarding her ketubah and she did not have the power to give, for everything belonged to the father, and the reason he remained silent was because he did not want to cause her distress. The Ra'avyah, of blessed memory, ruled that he is obligated to give, for since he remained silent, it is "silence is like admission," as he admitted that she possessed funds; perhaps she saved from her household expenses, or found a lost object, or the like [ibid. chapter 3 of Sanhedrin].

A gift of a shekhiv mera is only valid when he commanded it before witnesses. However, if one died and a deed of a gift of a shekhiv mera was found among his belongings, and even if the deed was tied to his thigh so that it is clear to us that he wrote it, and even if witnesses are signed on it, it is nothing, for perhaps he did not finalize the transfer except through the deed, and there is no deed after death [Rashbam 135b]. And the Rambam added further that even if they performed a kinyan from him and the kinyan was written in the deed in order to strengthen the power of those to whom he gave, it is also nothing, for I say he wrote it and reconsidered. And this is regarding a gift of his entire estate [Maggid Mishneh, chapter 9 of Zekhiyah]. But regarding a partial gift, it has already been explained that he cannot retract, and in a case where he can retract even regarding a partial gift, such as one who commands due to death, its law is like a gift of the entire estate [it appears to me]. And if the shekhiv mera granted title to the recipients through others, such as if he transmitted his words to any person and said, "What is written in this deed shall be given to so-and-so," his words stand, for the words of a shekhiv mera are considered as written and delivered. And all the more so if he delivered the deed to the other and said to him, "Acquire title to this deed on behalf of so-and-so that what is written in it shall be given to them," they have acquired title even without a kinyan [Nimukei Yosef]. And even if he granted title through one of the heirs, whether orally or by granting title to the deed through him, also all the matters in the deed stand like all gifts of a shekhiv mera, and we do not say that since he is an heir of the shekhiv mera it is as if it never left the possession of the shekhiv mera [Tur]. And specifically when dividing lands, but regarding movables, the delivery of the deed is not effective, for there is no deed for movables [ibid.], and regarding movables he must grant them title orally [it appears to me]. And so too if this one who acquires title is one of the recipients of the gift and he delivered the deed to him so that he should acquire title, they all acquire title through his receipt according to the opinion of the Rambam, for he has revealed his intent that he desires the gift to be fulfilled [Maggid Mishneh]. And all this is when it was a gift of a shekhiv mera which does not take effect until after death, or if it was specified in the deed "from today if I do not retract until after death," for in this too he can always retract until he dies [Tur]. But a healthy person who wrote a deed with a kinyan of a gift to someone and the deed was found with him after his death, the recipient of the gift acquires title, for with a healthy person there is nothing after a kinyan even when the deed did not reach the hand of the recipient [Maggid Mishneh, ibid.]. And there are those who disagree, as will be explained at the end of the next section.

Just as we are concerned regarding a deed of a will that perhaps he wrote it and reconsidered, so too regarding a promissory note, the Rambam wrote in the ninth chapter of Zekhiya that one who wrote a promissory note against himself in the name of another or in the name of one of his sons and gave the deed into the hand of a third party and said to him, "Let this be with you," and did not specify anything to him, or if he said to him, "Leave it until I tell you what to do," and he died, it is nothing. Thus far his words. For since we write a promissory note for a borrower even though the lender is not with him, we are concerned that perhaps he wrote it to borrow and has not yet borrowed [Tur]. And it appears from the words of the Rambam that the same applies to a deed of a will that he handed to a third party and did not say anything to him, or if he said to him, "Leave it until I tell you what to do," it is also nothing. And specifically when he granted title through another by saying to him, "Acquire this deed for so-and-so," or if he said, "What is written in this deed shall be given to so-and-so," it is effective, as I wrote in the previous section. But the handing over of a deed without words is nothing, for we are concerned that perhaps he retracted. And the same applies when a deed of sale is found with him or with a third party, it is nothing; since we write a deed for a seller even though the buyer is not with him, we are concerned that perhaps he wrote it to sell and did not sell [Sma]. But a deed of a gift of a healthy person with a kinyan, when it is found with a third party, even though he said nothing to the third party, the recipient of the gift acquires it, just as in the case of it being found after his death in the previous section, for from the moment of the kinyan he obligated himself and the deed is only for mere evidence. And some say that even regarding a promissory note and a deed of sale, when there is a kinyan in the deed, we are not concerned that perhaps he wrote it to borrow and did not borrow or wrote it to sell and did not sell, for from the moment of the kinyan he obligated himself, and as I wrote in siman 39 [Shach]. And the first opinion holds that certainly there is nothing after a kinyan; however, this is specifically when it is known by witnesses that he granted it to him, but here we are concerned that he prepared the deed but they had not yet agreed between them on the purchase or on the loan, and also perhaps he already repaid it and the like. But regarding a gift, where he does not need to receive anything from the recipient, the matter is clear that he performed a kinyan and there is nothing after a kinyan. And even regarding a gift, there is one who says that specifically when it is found in the hand of a third party, but a deed of gift with a kinyan that is found with the giver himself, and the witnesses of the kinyan are not before us to say that he granted it to him without qualification, it is nothing. And the same applies to a deed of hekdesh found in his possession. And so ruled one of the great authorities [Mabit] regarding one with whom it was found written that he consecrated such and such, that we do not extract it from the heirs, for perhaps he prepared it upon some condition and it was not fulfilled. And in siman 56, section 21, this was also explained; see there.

One who gives unspecified מטלטלין to another "from now and after death," and a long time passed until he died, and after he died the heirs claim: "Bring proof that these מטלטלין were in his possession at the time of the gift, for perhaps he acquired them after that time, and a person cannot transfer ownership of something that has not yet come into the world"—there is nothing in their words, for presumably they are found here now and they were here previously. There are those who disagree with this. In siman 60, section 13, we explained the details of the laws regarding this; see there. According to what I wrote there regarding the opinion of our teacher, the Rema, this is only when he specified them by name, such as if he said, "the two tables and chairs that are in my house," and the like, for we do not concern ourselves that perhaps they were others then. However, regarding unspecified מטלטלין or types of merchandise that are typically sold, it is upon the recipient to bring proof; see there and in siman 112, section 4.